The images were of young children, including toddlers and infants depicting bestiality.
The judge found that 50% of the images fell within “the most serious categories”, acknowledging the objectionable publications were voluminous and reflected very young children.
He also noted there was a pattern: it was a catalogue with descriptions and titles identifying the content, not a random acquisition of objectionable images.
In the judicial understatement of the year, the judge noted that “it is difficult” to accept that Moynaham viewed the publications with “no interest or intent of sexual preoccupation”.
The fact that Moynaham claimed otherwise naturally makes him a more significant risk to young children, indicating that he lacks insight into his clear obsession with collecting images of children being raped and exploited.
Of course, that has nothing to do with sexual gratification – be kind! It is a coincidence that the lonely Moynaham happens to find images of babies having sex with animals “aesthetic”.
Judge Crayton decided by a “finely balanced margin” not to put him on the Child Sex Offender Register, despite the urging of Crown prosecutor Raewyn Greenhalgh.
Let’s start with what the judge accepted were “the obvious harms” of circulating child pornography.
In case there is any doubt, the child porn industry is indisputably built on abuse, exploitation and forced sex. Children cannot consent. The ghouls and pervs paying to see it directly contribute to the special cruelty of this industry.
Without the David Moynahams, this abhorrent industry would collapse. Moynaham not (yet) being a “hands-on” offender does not stop him going on the register – he directly contributed to sexual offending against children.
The purpose of the register under the Child Protection Act 2016 is “to reduce sexual reoffending against child victims, and the risk posed by serious child sex offenders”.
It establishes a process of monitoring and risk management by including offenders’ location, name changes or if they seek employment near children.
It is not public, unlike similar registers in the United States, but it is open to government agencies, including police, Corrections and the Ministry for Children, to share information and intervene if warning signs appear.
Focusing on risk, the register is meant to be protective and preventive, not an additional punishment.
Why did Judge Crayton decide not to place Moynaham on the register?
Given the clear legal criteria, you would think he would be on that register quicker than a quantum blink. But no. The judge took into account that Moynaham had no previous convictions and had engaged with a clinician.
Analysing this judicial reasoning critically: while Moynaham had no previous convictions, he was before the court in circumstances where he could have faced thousands of charges for each download.
He only faced representative charges. He did not download all that material a week before he was caught.
As to engaging with the clinician, the research clearly shows heavy consumers of child sexual abuse material, especially extreme material, pose an elevated and persistent risk.
That evidence was part of Parliament’s rationale for creating the register – not because offenders cannot be reformed, but because their underlying risk means monitoring and multi-agency management is essential.
Studies suggest that the more extreme or violent the material, the stronger the indication of entrenched deviant sexual interests. Although overlap with “hands-on” offending varies, those with large extreme collections are also more likely to become a hands-on offender.
Experts consider paedophilic sexual interests as stable traits, not fleeting preferences. Parliament considered all of this but it appears to have played no role in the court’s application of the legislation.
The legislation provides that if Judge Crayton was satisfied that Moynaham posed a risk to the safety of children generally, he was entitled to put him on the register.
The act prescribes what the court must take into account when determining risk: the seriousness of a qualifying offence; the time that has elapsed since the offence was committed; and any written assessment of the risk posed by Moynaham. Here, the offending was very serious and relatively recent.
Scientifically, Moynaham has a high chance of reoffending given his lack of insight and his nerve to claim his interest was aesthetic in mitigation. The most consistently supported predictors of recidivism across sex offender research are deviant sexual interests and antisocial orientation.
The Crown prosecutor described him as “a risk to the community” and “a loner”, making him a perfect contender for the register. The harm caused by Moynaham’s abhorrent behaviour outweighed any harm from placing him on a register available only to limited social agencies. He disqualified himself from benefiting from our sympathy and leniency.
The law is clear and so is the science (although science rarely features at sentencing). Our criminal justice system remains Dickensian, with judges expected to go on gut reaction parading as “judgment”.
Placing names of convicted offenders on the register protects our children.
Feeling compassion or leniency for these offenders (not something, dear reader, you can accuse me of) is frankly not part of the assessment.
This issue was not “finely balanced”: the answer was self-evident under the legislation and a matter of common sense.
Lady Deborah Chambers is a New Zealand King’s Counsel specialising in trust litigation and relationship property.
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